In re Marriage of Hoffman

IN RE THE MARRIAGE OF TRACY LYNN HOFFMAN AND ERNST FRANKLIN HOFFMAN, Upon the Petition of TRACY LYNN HOFFMAN, Appellant, And Concerning ERNST FRANKLIN HOFFMAN, Appellee

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On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge. A father seeks further review of a court of appeals decision denying a change in physical care of the father's two children after his former wife moved from Polk County to Monroe County with her new spouse.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

In this case, we determine whether a substantial change of circumstances justifying a modification of a dissolution decree occurred when a mother with joint legal custody and primary physical care of two children moved approximately seventy miles from a Des Moines suburb to a rural home in a new school district. Upon our de novo review, we find the children's father failed to prove the change of circumstances justified a modification of the decree. Accordingly, we affirm the court of appeals decision, reverse the district court's order modifying the physical care provisions of the parties' dissolution decree, and remand for determination of child support and a visitation schedule based upon the present circumstances.

I. Background Facts and Proceedings.

Ernst Hoffman,[1] an emergency room physician, married Tracy Hoffman,[2] a registered nurse, in 1996. The couple had two children together: a daughter born in 1999 and a son born in 2002. Tracy became the primary caretaker of the children, enabling Ernie to concentrate his energy on his profession and provide a high standard of living for the family.

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During the marriage, the Hoffman family spent much of their leisure time engaging in equine and rodeo activities, including barrel-racing and roping competitions. According to Tracy, the parties' daughter has " grown up on horses" and has had success in competitive barrel racing, pole bending, goat tying, and pleasure horse events. The daughter had her best season in 2012, earning championship honors at two separate rodeos. The parties' son also participates in rodeo events, including dummy roping, breakaway roping, barrels, and poles.

Ernie and Tracy divorced in 2006. The divorce decree incorporated the parties' stipulations and contained no provision establishing that the parties agreed to remain in a particular school district or geographical area. The decree granted the parents joint legal custody of the children, but allocated primary physical care of the children to Tracy, with Ernie receiving extraordinary visitation.[3]See Iowa Ct. R. 9.9 (defining " extraordinary visitation" as visitation that " exceeds 127 days per year" ).

Tracy and Ernie maintained residences in close proximity to each other for a time after the dissolution. Tracy purchased a home in Pleasant Hill, Iowa, near the former marital residence, with a barn and five acres for the horses Tracy and the children owned. She did so in furtherance of stability for the children after the divorce and for the purpose of minimizing disruption in their schooling and extracurricular--especially equine--activities. Ernie also lived in Pleasant Hill for a time after the divorce, but he eventually built a new home nearby in Runnells, intending to stay in close proximity to, and actively involved with, the children. Ernie has had extensive involvement in the children's lives and has maintained a close relationship with them after the dissolution.

Both Ernie and Tracy eventually married new spouses. Ernie married Dawn Hoffman in 2008. Tracy married Rob Bain in 2012. Rob owns a residence south of Albia, about seventy miles from Ernie and Dawn's home in Runnells.

In 2011, before purchasing the land for the Runnells home, Ernie asked Tracy to confirm she intended to maintain her residence in Pleasant Hill. In an email message to Tracy, Ernie stated he and Dawn " would be looking elsewhere if the kids were going to be pulled to a different area." At the time, Tracy and Rob were engaged, but not yet married. Tracy replied that she and Rob had not yet decided to vacate the Pleasant Hill residence and stated they would " cross that bridge when/if" they needed to do so. Tracy communicated with Ernie the following day, informing him that a move " to Albia at [some point] is a realistic option." Ernie moved forward with his Runnells home construction plans under the assumption Tracy would not move for at least a few years.

Tracy and Rob were married in January 2012, and for several months afterward, maintained two residences--Tracy's in Pleasant Hill and Rob's in Albia. However, Tracy had fallen behind on mortgage payments and was experiencing financial stress. Believing consolidation of two households into one would foster their new family unit, reduce financial pressures, and make their lives less chaotic, they eventually decided to sell Tracy's home in Pleasant Hill and live together in Rob's home near Albia. Tracy's decision to move with

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the children to Albia was also influenced by the fact that Polk County's zoning ordinance authorized the family to keep only two horses on the Pleasant Hill property. This zoning restriction posed a problem because she and the two children kept at least three and sometimes as many as five horses at any given time.

Tracy listed her Pleasant Hill property for sale, but did not promptly notify Ernie. When he was informed of the listing by the parties' daughter on May 10, 2012, Ernie asked Tracy whether she had made plans to move. Assuming a change of residence was not imminent because it could take many months to sell her property, Tracy told Ernie no specific plan for a move had been established.

Tracy later decided to move with the children to Albia in December 2012. She informed Ernie of this plan by email on November 27, 2012. After learning of the imminent move, Ernie promptly filed a petition seeking a modification of the physical care and child support provisions of the dissolution decree and sought injunctive relief preventing Tracy from changing the children's residence. Ernie asserted the proposed move would disrupt the children's lives by pulling them away from teachers, friends, and peers; prevent the children from participating in the athletic activities they enjoyed in the Southeast Polk Community School District; separate them from their half-brother, R.H.; [4] negatively affect their relationship with four grandparents living in the Des Moines area; and substantially interfere with his extraordinary visitation and active role in parenting the children. Tracy filed a counterclaim seeking an increase in child support to account for a substantial increase in Ernie's income since the 2006 dissolution decree.

The district court denied Ernie's application for a temporary injunction, finding the reason for Tracy's move " [didn't] appear to be for the purpose of circumventing [Ernie]'s rights as a joint legal custodian." Tracy and the children moved to Albia in December 2012, and the children were enrolled as students in the Albia Community School District in January 2013.

Before ruling on the petition for modification, the district court appointed attorney Lora McCollom as guardian ad litem (GAL) to represent the children's best interests. McCollom interviewed Ernie, Dawn, Tracy, Rob, and the children, and submitted a report to the district court recommending modifications of the decree. In particular, McCollom recommended that Ernie should become the primary physical custodian so that the children could return to schools within the Southeast Polk school district, where they preferred to be. McCollom's recommendation would, in her words, allow the children to " receive their education in a district with more resources, more options, and more activities, while still allowing them to continue to enjoy rodeo and to participate in the other outdoor activities in Albia." McCollom's recommendations were based on her evaluation of several factors considered by this court in In re Marriage of Frederici, 338 N.W.2d 156, 160 (Iowa 1983).

The first factor McCollom considered was the reason for Tracy's relocation of the children's residence. See Frederici, 338 N.W.2d at 160. McCollom concluded Tracy did not move to Albia to thwart Ernie's parental rights. However, McCollom believed the move was a matter of " convenience to Tracy and to Rob, and not

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for the best interests of the kids" who were separated from their friends and much of their family as a consequence of their relocation. McCollom's report also emphasized that Tracy did not move to Albia in furtherance of a job promotion or to be closer to a family support system.

McCollom also based her recommendations on an assessment of the characteristics of the children's new home environment and its distance from Polk County. See id. She concluded the Albia residence provided the children with a better venue for their rodeo and other outdoor activities.[5] Yet, McCollom found the rural home located several miles outside Albia is somewhat " isolated" and requires the children to spend substantial time in the car before school on Mondays when returning from weekends with Ernie.

McCollom's report assessed other advantages and disadvantages of the Albia residence. See id. Among the perceived advantages was the fact that the Albia school district offers a lower teacher-to-student ratio than the Southeast Polk school district. The smaller school in Albia, McCollom opined, also offers the children the prospect of enhanced opportunities to participate in school-sponsored sports activities. Disadvantages arising from the move to Albia, according to McCollom, included a loss of mid-week overnight visits with Ernie during the school year and the increased distance affecting visitation. In comparing the academic opportunities offered by the two school districts, McCollom cited data suggesting that the Southeast Polk school district offered higher student proficiency rates, better graduation rates, and a greater percentage of graduates achieving college degrees.

McCollom's assessment also considered the impact of the move on both the children and their parents. See id. She noted both children experienced a modest diminution in their academic performance after moving to Albia. The move was a substantial adjustment for them and, not unexpectedly, produced stress in their relationship with Tracy. Both children reported to McCollom that they missed their friends and activities in Polk County.

McCollom noted the children have the luxury of having two good, loving parents and two caring and attentive step-parents who provide healthy and suitable home environments for the children. However, she opined the move to Albia constitutes a material and substantial change in circumstances justifying a change in the physical care provisions of the divorce decree. McCollom recommended primary care be transferred to Ernie in part because she believes better academic opportunities are available to the children in the Southeast Polk school district, because the children would prefer to live in Runnells where they would be closer to more friends and extended family, and because the children's equine and rodeo interests could be best facilitated during extended summer visitation with Tracy at the Albia residence.

The district court modified the decree by granting Ernie primary physical care, prescribing an amended parenting schedule, and setting a child support obligation for Tracy. The court largely followed McCollom's recommendations and found " Tracy's decision to relocate is premised primarily on her wants, rather than the children's best interests or their needs."

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Tracy appealed and sought a stay of the district court's ruling. We granted the stay and transferred the case to the court of appeals. The court of appeals concluded Ernie had failed to prove a substantial change of circumstances affecting the best interests of the children. The court of appeals also concluded Ernie failed to prove he has a superior ability to minister to the children's needs. The court therefore reversed the modification ruling in part[6] and remanded the case to the district court for the determination of a suitable visitation schedule for Ernie and an appropriate amount of child support under the present circumstances.

Ernie sought, and we granted, further review.

II. Scope of Review.

Petitions to modify the physical care provisions of a divorce decree lie in equity. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 476 (Iowa 1993). Accordingly, our review is de novo. Id.; see Iowa R. App. P. 6.907. Although we make our own findings of fact, " when considering the credibility of witnesses the court gives weight to the findings of the trial court" even though we are not bound by them. In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989). The children's best interest is the " controlling consideration." In re Marriage of Leyda, 355 N.W.2d 862, 865 (Iowa 1984); see also In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983) (" first and foremost consideration" ). Utilizing the best-interest standard " provides the flexibility necessary to consider unique custody issues on a case-by-case basis." In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007).

III. Analysis.

The general principles guiding our adjudication of petitions for modification of dissolution decrees are well-established:

To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of evidence that conditions since the decree was entered have so materially and substantially changed that the children's best interests make it expedient to make the requested change. The changed circumstances must not have been contemplated by the court when the decree was entered, and they must be more or less permanent, not temporary. They must relate to the welfare of the children. A parent seeking to take custody from the other must prove an ability to minister more effectively to the children's well being.

Frederici, 338 N.W.2d at 158. These principles clearly place a heavy burden on a parent requesting a modification. The burden is necessarily a heavy one undergirding the fundamental policy that " once custody of children has been fixed it should be disturbed only for the most cogent reasons." Id.

A decision by a joint custodial parent with physical care of minor children to change residences is " the kind of decision the other joint custodian has a right to be consulted about." Id. at 159. Ernie contends Tracy failed to inform him and consult with him about her plan to move the children from their Polk County home. See In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct.App. ...

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